High Court Punjab-Haryana High Court

Smt.Natho Devi And Others vs Bhoop Singh And Others on 19 May, 2009

Punjab-Haryana High Court
Smt.Natho Devi And Others vs Bhoop Singh And Others on 19 May, 2009
             IN THE HIGH COURT OF PUNJAB AND HARYANA
                         AT CHANDIGARH.


                                        R.S.A. No.4370 of 2001
                                        Date of Decision: 19.5.2009


             Smt.Natho Devi and others.

                                            ....... Appellants through Shri
                                                    R.A.Yadav,Advocate.

                          Versus

             Bhoop Singh and others.
                                            ....... Respondent nos.1, 3, 4 & 5
                                                    through Shri Rajesh Arora,
                                                   Advocate.


      CORAM: HON'BLE MR.JUSTICE MAHESH GROVER

                                 ....

             1. Whether Reporters of Local Newspapers may be allowed to
                see the judgment?
             2. To be referred to the Reporters or not?
             3. Whether the judgment should be reported in the Digest?

                                 ....

Mahesh Grover,J.

This Regular Second Appeal is directed against judgment and

decree dated 21.8.2001 passed by the Additional District Judge, Gurgaon

(hereinafter referred to as `First Appellate Court’) whereby the appeal of the

plaintiffs-respondent nos. 1 to 5 was accepted, the judgment & decree dated

1.3.1999 of the Civil Judge (Junior Division), Gurgaon (described

hereinafter as `the trial Court’) were set aside and their suit was decreed.

Respondent nos. 1 to 5 along with Smt.Kishan Devi (since

deceased and now represented by respondent nos. 1 to 5 being her legal

heirs) had filed a suit for declaration with consequential relief of permanent

injunction and in the alternative, for possession. It was prayed that they be
R.S.A.No.4370 of 2001

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declared owners in possession of the land in dispute as the legal heirs of

Hira Lal and Ashrafi, deceased and the defendants – appellants & proforma

respondent nos.6 to 11 be restrained from dispossessing them or interfering

in any manner by way of digging and constructing a wall over it. It was also

prayed that if the appellants & proforma respondent nos. 6 to 11 were

successful in dispossessing them from the land in dispute, then a decree for

possession be also passed in their favour.

It was pleaded that one Nanda son of Nanwa was owner in

possession of the land comprised in Khewat No.1266 measuring 16 biswas

situated in the revenue estate of village Sohna; that Nanda had mortgaged

the said land to Dhan Singh son of Ram Singh on 8.7.1914 for a

consideration of Rs.40 by means of an oral mortgage and handed over the

possession thereof to him; that mutation no.336 dated 27.11.1914 was

sanctioned to that effect; that Nanda was succeeded by his son Puran, who

has since expired and the appellants are his successors-in-interest; that

Dhan Singh was succeeded by his son, Hira Lal, who has also died and

respondent nos. 1 to 5 are his successors-in-interest; that the land

comprised in khasra no.1266 was converted into the land bearing khewat

no. 23, khata no.33, khasra no.437 (4-0) as per jamabandi for the year

1986-87.

On the basis of the above averments, it was prayed by

respondent nos.1 to 5 that since the mortgagor or his successors-in-interest

have failed to redeem the mortgage within the prescribed period of sixty

years, they be declared owner in possession of the suit land.

R.S.A.No.4370 of 2001

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Upon notice, the proforma respondents nos. 6 to 11 and Puran,

who were impleaded as defendants in the suit, appeared and filed two

separate sets of written statement. In their written statement, the proforma

respondents nos. 6 to 11 pleaded that respondent nos. 1 to 5 have got no

right, title or interest on the land bearing Rect.No.441 (3-0) situated in the

revenue estate of village Sohna because they have sold the same to some of

them; that respondent nos. 1 to 5 are not the legal heirs of Hira Lal; that

respondent nos. 1 to 5 are not owners in possession of the land in dispute

nor they were mortgagees as alleged; that the proforma respondent nos. 6 to

8 had purchased the suit land vide registered sale deeds dated 14.11.1973

and 14.9.1983 and that these respondents have become owners in

possession of 2 kanals 15 marlas land out of khasra no.441 and that

respondent nos. 1 to 5 had no cause of action to file the suit.

In his written statement, Puran pleaded that respondent no.1 to

5 had no right, title or interest in the land in dispute; that they had no locus

standi to file the suit; that the mortgage had extinguished on account of use

and occupation of the mortgaged property and income derived therefrom as

well as on account of lapse of time; that the particulars of the mortgage have

not been given and, therefore, the suit was not maintainable in the present

form; that there was no relationship of mortgagor and mortgagee between

him and respondent nos. 1 to 5 and that since these respondents were

acknowledging the mortgage, they have not become the owners in

possession of the land in dispute.

On the pleadings of the parties, the trial Court framed the
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following issues:-

1. Whether the plaintiffs are owners in possession of the land in

dispute on the ground as alleged?OPP

2. Whether the plaintiffs have no right, title or interest in the

property in dispute as alleged?OPP

3. whether the plaintiffs estopped from filing the present suit

by their own, act, conduct etc.?OPD

4. Whether the suit of the plaintiffs is not maintainable in the

present form?OPD

5. Whether the mortgage in question has extinguished on the

grounds stated in the preliminary objection No.5 of the W.S.

If so, to what effect/OPD

6. Relief.

After appraisal of the entire evidence on record, the trial Court

dismissed the suit of respondent nos. 1 to 5, whereas in appeal, its findings

were upset by the First Appellate Court.

Hence, this Regular Second Appeal.

On 2.11.2001, while admitting the appeal, this Court had

directed it to be heard along with R.S.A. No.1611 of 1999.

The Registry has put up this matter for disposal before the

Court with a report that R.S.A.No.1611 of 1999 has since been decided on

22.10.2008 by a learned Single Judge in view of the judgment of the Full

Bench in Ram Kishan and others Versus Sheo Ram and others, decided on

12.12.2007, reported as 2008(1) R.C.R. (Civil) (P&H) 334.

R.S.A.No.4370 of 2001

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At the hearing, both the learned counsel for the parties are

agreed that this appeal may be disposed of in view of the judgment of the

Full Bench in Ram Kishan’s case (supra).

I have heard the learned counsel for the parties and have gone

through the impugned judgment, as also the above judgment of the Full

Bench.

The questions of law which arise for determination in this

appeal are as under:-

1. Whether the findings recorded by the First Appellate Court

are perverse and are liable to be set aside?

2. Whether the mortgage in this case is a usufructuary

mortgage or a simple mortgage and is redeemable even today

and the rights of the mortgagor not extinguished by efflux of

time?

In Ram Kishan and others (supra), the Full Bench in

paragraphs 30,31,32 and 42 has observed as under:-

“30. Thus, the right of redemption by act of parties can be

extinguished by independent contract subsequent to the

mortgage and not by an unilateral act on the part of the

mortgagee under the mortgage.

31. In Ganga Dhar’s case (supra), Hon’ble Supreme Court was

examining a mortgage which was for a period of 85 years but

the same was sought to be redeemed before the expiry of the

said period on the ground that such long period amounts to
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clog on redemption. The Court to the following effect:-

“The right of redemption, therefore, cannot be taken

away. The Courts will ignore any contract the effect of

which is to deprive the mortgagor of his right to redeem

the mortgage. One thing, therefore, is clear, namely,

that the term in the mortgage contract, that on the failure

of the mortgagor to redeem the mortgage with the

specified period of six months the mortgagor will have

no claim over the mortgaged property, and the mortgage

deed will be deemed to be deed of sale in favour of the

mortgagee, cannot be sustained. It plainly takes away

altogether, the mortgagor’s right to redeem the mortgage

after the specified period. This is not permissible, for

“once a mortgage always a mortgage” and, therefore,

always redeemable. The same result also follow from

Section 60 of the Transfer of Property Act….”

32.The said judgment was quoted extensively by the Hon’ble

Supreme Court in Harbans’s case (supra), which arose out of a

judgment of this Court reported as Harbans v. Om Parkash,

1998(1) RCR (Civil) 678 : 1998(2) PLR 172. The order passed

by this Court is reproduced for ready reference:-

“1. This is plaintiff’s second appeal.

2. Plaintiff filed civil suit contending therein that the

land in dispute was mortgaged by the ancestors of
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One Bhira with the fore-fathers of plaintiff and

mortgage has not been got redeemed by the mortgagor

within 30 years and so, the plaintiff and defendants 2

and 3 have become owners by efflux of time. Upon

notice of suit, defendant No.1 contested the suit and

alleged that mortgage has already been redeemed. He

denied that plaintiff and defendants 2 and 3 have

become owners by efflux of time. Trial Court decreed

the suit, but on appeal by defendant No.1 judgment of

the trial Court has been modified and it has been held

that plaintiff and defendants 2 and 3 have not become

owners as there is no period of limitation to redeem

usufructuary mortgage. It has, however, been held that

defendant No.1 has failed to prove the mortgage has

been redeemed. Against the judgment and decree of

the first appellate Court, plaintiff has come in second

appeal.

3. Learned counsel appearing on behalf of plaintiff

relying upon judgment of the Apex Court in State of

Punjab and others v. Ram Rakha and others, 1998(3)

RCR (Civil) 124 : JT 1997(2) SC 577, has contended

that by not redeeming the mortgage within the

stipulated period, mortgagor has lost right to redeem

the same.

R.S.A.No.4370 of 2001

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4. After hearing the counsel and going through the

record, I am of the view that the judgment cited by the

counsel for plaintiff in Ram Rakha’s case (supra) , the

point in issue was not considered. In this case, it is the

admitted case of the parties that mortgagee is in

possession of the property in dispute and no evidence

has been brought on record by the mortgagee to show

that mortgage was for a fixed period. Since no time

was prescribed for redeeming the land, the

mortgagor has the right to get the property redeemed,

there being no limitation for redeeming the said

mortgage (emphasis supplied). In this regard,

reference be made to judgment in Panchanan Sharma

v. Basudeo Prasad Jaganani and others, 1995 HRR

575. Consequently, this appeal being without any

merit shall stand dismissed.”

42.Therefore, we answer the questions framed to hold that in

case of usufructuary mortgage, where no time limit is fixed

to seek redemption, the right to seek redemption would not

arise on the date of mortgage but will arise on the date when

the mortgagor pays or tenders to the mortgagee or deposits

in Court, the mortgage money or the balance thereof. Thus, it

is held that once a mortgage always a mortgage and is

always redeemable.”

R.S.A.No.4370 of 2001

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The facts of the instant case reveals that the mortgage of the

suit land by the predecessor-in-interest of the appellant in favour of the

predecessor-in-interest of respondent nos. 1 to 5 was not disputed. The

possession of the suit land was also handed over at that time and no time

limit was fixed for redemption of the mortgage. Therefore, it was a

usufructuary mortgage not a simple mortgage.

In this view of the matter, the observations of the Full Bench

reproduced above are straight-away attracted to the facts of the instant case

and the mortgage could be redeemed at any time being usufructuary

mortgage.

The questions of law, as mentioned above, are, therefore,

answered to say that the mortgage in this case was a usufructuary mortgage

and not a simple mortgage and it could be redeemed at any time and that the

findings recorded by the First Appellate Court are liable to be set aside.

Accordingly, this appeal is accepted, the judgment & decree of

the First Appellate Court are set aside and the appellants or the proforma

respondents, who are said to be bona fide purchasers of the suit land, are

held entitled to get redeemed the mortgaged suit property by paying the

mortgage money to the successors-in-interest of the original mortgagee.

May 19,2009                                      ( Mahesh Grover )
"SCM"                                                Judge